California’s 3rd District Court of Appeals this week ruled that causation for an injured worker’s disability can be apportioned to genetics.
Ever since 2004, the court said, an employer is liable for compensating workers only for the percentage of permanent disability that is directly attributable to an industrial injury. According to the court, that means Christopher Rice’s employer didn’t bear legal responsibility for the extent to which his disability from a neck condition was caused by a pre-existing degenerative condition linked to heredity or genetics.
Rice was a 29-year old police officer working for the city of Jackson in the Sierra foothills when he began complaining of neck pain. He blamed the pain on the repetitive bending and twisting of his head and neck while on duty.
The city accepted liability for a cumulative trauma injury to his neck, but it insisted this injury was not the only cause of Rice’s disability. The city argued that his prior employment and a non-work-related car accident were also contributing factors.
Dr. Sloane Blair was appointed as the qualified medical evaluator. She noted that Rice had degenerative disc disease, and said recent publications by the North American Spine Society and the American Academy of Orthopedic Surgeons support the idea that "heritability and genetics play a significant role in the genesis of degenerative disease of the spine," as the tensile strength of a person's collagen "are related to the DNA and genetic coding" of each individual.
Given this evidence of “predominantly genetic causation,” Blair said she believed 49% of Rice’s disability had to be attributed to "his personal history, including genetic issues." She opined that only 17% was caused by Rice’s work.
Administrative Law Judge Joseph Samuel reduced Rice's award of permanent disability benefits in accordance with Blair’s apportionment findings, but the Workers' Compensation Appeals Board overturned his decision.
Then-Chairwoman Ronnie Caplane wrote for the panel, which also included Commissioner Deidra Lowe and Deputy Christine Gondak.
Caplane said that Labor Code Section 4663(c) requires medical experts to "make apportionment determinations by finding what approximate percentage of permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment," and "what approximate percentage of the permanent disability was caused by other factors."
She acknowledged that a 2005 en banc WCAB decision called Escobedo v. Marshalls established that "the natural progression of a nonindustrial condition or disease, a pre-existing disability or a post-injury disabling event" can all be apportioned. But if a doctor is going to apportion to one of these types of "other factors," then Caplane said the rule from Escobedo requires the doctor to explain why and how that factor was causing the worker's disability.
Caplane said Dr. Blair's opinion failed to meet this standard because Blair was "assigning causation to (Rice's) genetic makeup and not to specific debilitating factors causing his current level of disability.” Such an approach opens the door to apportionment of disability to "impermissible immutable factors," such as gender, race and age, Caplane opined.
The City of Jackson appealed the decision, and the 3rd DCA issued a writ of review almost exactly two years ago.
The California Chamber of Commerce filed an amicus brief supporting the city. The California Applicants' Attorneys' Association threw its support behind Rice.
The case languished at the Court of Appeal for more than 18 months before an oral argument date was set. The court heard from the parties last week and issued a decision annulling the WCAB’s decision late Wednesday.
Prior to the Legislature’s enactment of Senate Bill 899 in 2004, the court said, employers were liable for compensating workers for permanent disabilities caused by a combination of industrial and non-industrial factors. SB 899 added Sections 4663 and 4664 to the Labor Code, which serve to limit an employer’s liability by allowing “apportionment based on causation,” the court said.
As recognized by the WCAB in the Escobedo case, apportionment can be based on “the natural progression of a nonindustrial condition or disease, a pre-existing disability or a post-injury disabling event,” as well as “pathology, asymptomatic prior conditions and retroactive prophylactic work preclusions,” the court explained.
The court said it could “perceive no relevant distinction between allowing apportionment based on a pre-existing congenital or pathological condition and allowing apportionment based on a pre-existing degenerative condition caused by heredity or genetics.”
The court also found that Dr. Blair had properly apportioned the causation for Rice’s disability.
“Dr. Blair did not conclude, as the board apparently determined, that the repetitive motion (the injury) was caused by genetics,” the court said. “Rather, Dr. Blair properly concluded that Rice’s disability, i.e., his debilitating neck, arm, hand and shoulder pain preventing him from performing his job activities, was caused only partially (17%) by his work activities, and was caused primarily (49%) by his genetics.”
The court then went on to find that substantial medical evidence supported Dr. Blair’s apportionment decision.
Charles S. Templeton of Lenahan, Lee, Slater & Pearse represented the City of Jackson before the 3rd DCA.
He said Thursday that the case was not about apportioning to “genetics in the abstract, or immutable characteristics, in the abstract.” Templeton said that’s not what he was advocating, as he believed that “would open the door for discrimination.”
He said the issue before the court was simply whether there could be apportionment to account for Rice’s degenerative disc disease.
Templeton said there was objective medical evidence establishing Rice had degenerative disc disease. Dr. Blair’s opinion was that “the most medically probable explanation” for Rice’s development of the degenerative disc disease was his “genetics and hereditary makeup," he said.
Templeton said he believed the court’s decision “has the potential to be of very large significance” in future cases involving spinal injuries, but “only time will tell.”
Rice still has the opportunity to seek review by the California Supreme Court. Templeton said he hadn’t heard whether Rice will purse a further appeal.
Attorney William A. Herreras filed the amicus brief for CAAA. He said his understanding was that Rice will petition the California Supreme Court for relief, and he expected that CAAA would again serve as an amicus for Rice.
He said his argument in the amicus brief to the 3rd DCA had been that apportionment to genetics constituted discrimination under California’s Fair Employment and Housing Act.
Under FEHA, it is illegal for an employer to discriminate because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person.
The 3rd DCA refused to consider his argument because it hadn’t been based on a point raised by either of the parties.
Herreras said he was disappointed that it seemed “no one gets the point that a condition like degenerative arthritis is a disease of aging,” and because FEHA prohibits discrimination on the basis of age, Herreras said he thought it was “irreconcilable” with FEHA to allow for apportionment to degenerative arthritis.
Unfortunately, he said, “age, gender and genetic makeup are now apparently permissible sources for apportionment” as far as the 3rd DCA is concerned.
Joseph Capurro, co-chair of CAAA's amicus committee and executive board secretary, commented that the United States Department of Labor issued a position paper in 1998 “urging that genetic information should be used in only the most limited manner when considering issues of employability and employment benefits,” but the 3rd DCA “is promoting the exact opposite approach.”
Capurro opined that there is “nothing in the changes to the apportionment law which signaled that it was the Legislature's intent that we go down this slippery slope of allowing employers to reduce their liability because of genetic factors.” He said the California Supreme Court may very well be interested in reviewing the 3rd DCA decision.
California Chamber of Commerce Associate General Counsel Heather Wallace said her group was happy to see the decision “reaffirming the reforms of SB 899” and the idea that an employer “is liable only for the percentage of permanent disability directly caused by the industrial injury."
Ellen Sims Langille had filed the amicus brief for the California Chamber of Commerce while she was still an attorney with Finnegan, Marks, Theofel & Desmond. She has since left the firm to become general counsel for the California Workers’ Compensation Institute.
Speaking in her capacity as a CWCI representative, Langille said she saw the 3rd DCA ruling as “strong support for the idea that everything an injured worker brings to the table is a potential source of apportionment if it is a cause of disability.”
Jake Jacobsmeyer, a defense attorney with Shaw, Jacobsmeyer, Crain & Claffey who reviewed the court’s decision, said he believed the 3rd DCA has recognized that “you can apportion to anything you can identify as being contributory,” as long as “you’ve got a really good explanation” as to why.
He said the 3rd DCA’s ruling is “going to be very useful” for attorneys seeking apportionment for “internal medicine cases,” especially those including heart attacks and strokes.
Jacobsmeyer said the general rule is that “if a worker’s condition would be the different absent the fact of something,” then “you must apportion to that.” Doing so “isn’t discrimination, it’s differentiation based on scientific evidence,” he contended.
Julius Young, an applicants’ attorney with Boxer & Gershon, also blogged about the 3rd DCA decision Thursday.
He predicted the California comp system will be seeing increasing attempts to have QMEs comment on scientific studies on the genetic causation of various conditions, and more aggressive questioning of doctors.
Young also said he expected “there will continue to be disputes about whether genetic causation of a condition is really causation of an injury rather than causation of disability,” and he posited that the way scientific studies are worded may affect how doctors treat this issue.
He said he had some concern that “’genetics’ may be a slippery slope which takes the inquiry into racial, ethnic and gender issues, since some ethnic and gender groups may be genetically more prone to various conditions.” Young said he is wondering “how far will the courts go in allowing apportionment when the apportionment becomes race- or gender-based.”
With the rapid development of genetic testing and genome matching, Young suggested that there may be future efforts “to use that sort of data to rule in/rule out a genetic component to disability.”
Whether the Rice case “will be a game changer” remains to be seen, Young said, but “it looks like a tar pit to me.”
To see the court's decision, click here.
Jul 29 – Aug 2, 2024
SAVE THE DATE! 76th Annual SAWCA Convention July 29 August 2, 2024 Hotel Effie Sandestin 1 Grand …
Aug 14-17, 2024
California Society of Industrial Medicine and Surgery (CSIMS) is combining its two conferences, PI …